Public Opinion Quarterly, Vol. 71, No. 1, Spring 2007, pp. 40–66
ISSUE PREFERENCES AND EVALUATIONS OF
THE U.S. SUPREME COURT
MARC J.HETHERINGTON
JOSEPH L. SMITH
Abstract While some previous studies have found that public
support for the Supreme Court is related to the ideological direction of its
decisions, these studies were based on data from the Warren Court era, a
period of high profile judicial liberalism. Since then, the Court has grown
much more conservative, although its decisions have carried a much
lower profile. We show that the mass media have done little to allow
ordinary Americans to follow this change. As a consequence, we find that
public evaluations in the 1990s continued to reflect a 1960s understanding of the Court, with liberals on racial and gender issues as well as
those least fearful of crime evaluating the Court most favorably. Only
those who are both knowledgeable and highly motivated to follow Court
outputs tracked its rightward shift on issues that are important to them.
By the late 1990s, the Supreme Court should have been the darling of
American conservatives. After a long liberal period stretching from the 1950s
through the early 1970s, the Court turned right. The Rehnquist Court’s
conservative preferences were evident in decisions curtailing affirmative
action programs (Adarand v. Pena, 1995), paving the way for school
resegregation [Board of Education v. Dowell (1991), Freeman v. Pitts (1992)
and Missouri v. Jenkins (1995)], limiting the rights of the accused [Arizona v.
Evans (1995)], and upholding restrictions on abortion rights [Planned
Parenthood v. Casey (1992)]. Despite this rightward shift, we show that
liberals continued to evaluate the Rehnquist Court more positively than
conservatives did through the 1990s. This helps explain why overall support
for the Court did not fluctuate appreciably (Mondak and Smithey 1997),
even as the Court moved far to the right of the public’s policy mood (Mishler
and Sheehan 1993).
MARC. J. HETHERINGTON
is an Associate Professor of Political Science at Vanderbilt University.
is an Assistant professor of Political Science at University of Alabama. Address
correspondence to Marc J. Hetherington, e-mail: [email protected].
JOSEPH L. SMITH
doi:10.1093/poq/nfl044
Advanced Access publication February 28, 2007
ß The Author 2007. Published by Oxford University Press on behalf of the American Association for Public Opinion Research.
All rights reserved. For permissions, please e-mail: [email protected].
Evaluations of the U.S. Supreme Court
41
Perhaps, we should not be surprised that the public has missed the Court’s
right turn. For new information to cause opinion change, people need both
information and the motivation to use it (Kuklinski et al. 2001; see also
Petty and Cacioppo 1986). Both are in short supply. The press provides little
information about the Court (Caldeira 1991; Franklin and Kosaki 1995;
Graber 1997), and most Americans lack the motivation to learn about the
decisions of a complex and remote nonelective branch. Given the lack of
information and motivation, we might expect that public evaluations of the
Court would be unrelated to its decisions. Instead, Americans did evaluate
the Rehnquist Court in ideological terms, but most tended to misperceive it in
several issue areas. We surmise that these mistaken impressions result from
the mass media’s relative inattention to recent Court decisions and perhaps
their continued attention to decisions from the Warren Court era. We find that
only the most highly informed and motivated observers—a very small group
indeed—realized that the Rehnquist and Warren Courts possessed different
ideological orientations. Finally, we discuss the applicability of our findings
for public support of the Court in the aftermath of Bush v. Gore and the likely
continued move to the right with the confirmation of two new conservative
Justices.
Public Support for the Supreme Court
Support for the Court is high, with the public consistently evaluating it more
favorably than both the executive and legislative branches (e.g. Hibbing and
Theiss-Morse 1995; Marshall 1989; Mondak and Smithey 1997). While some
might guess that the public likes the Court so well because they think it is
apolitical, this is not the case. For example, more respondents list political
factors than legal factors when asked what they think is the motivation for
Supreme Court decisions (National Law Journal 1990).
Hibbing and Theiss-Morse (1995) argue that two factors influence public
evaluations of political institutions: (1) the policy decisions generated by the
institution and (2) the process by which the institution makes policy. Unlike
Congress, the decision-making process of the Supreme Court is almost
completely hidden from view. Justices discuss and vote on cases in their
conference room with no media present, and the media have generally not
attempted to shed light on this process (Slotnick and Segal 1998). The
media’s inattention to the Court’s process likely explains why it is more
popular than Congress, but it cannot explain why certain people evaluate
the Court more positively than others. In this area, the Court’s decisions must
be an important information source.
The scholarly evidence supports this thinking. Prominent political events
such as the Court’s response to the Roosevelt Court-packing plan (Caldeira
1987), the Watergate-related rulings (Caldeira 1986), and the stream of
42
Hetherington and Smith
liberal decisions during the Warren Court era (Caldeira 1986; Tanenhaus
and Murphy 1981) all produced measurable changes in public support for
the Court. The direction of change depended on the whether the Court’s
actions were consistent or inconsistent with the public’s wishes.1 Consistent
with a negativity bias, disagreement with controversial decisions has
a more dramatic effect than does agreement with them (Grosskopf and
Mondak 1997).
During the period covered by most of these studies, the Court enjoyed its
strongest support from liberals (see Caldeira 1991, for a review), most likely
because the Court’s policy outputs were consistently liberal, often dramatic,
and sufficiently important to stir controversy across all branches of the
federal government. Using data from 1966, Murphy and Tanenhaus (1968)
showed that preferences on school prayer, school integration, civil rights,
residential integration, and social welfare policy correlated strongly with
support for the Court, with liberals showing stronger support.2 Using data
from both the 1960s and 1970s, these same scholars found that liberals on
civil rights issues supported the Court more than conservatives (Tanenhaus
and Murphy 1981, 37). Also using data from the 1960s and 1970s, Adamany
and Grossman (1983) found that politically active liberals supported the
Court more than any other group.
Summarizing the research on the bases of support during the Warren Court
era, Caldeira (1991, 322) noted that it had consistently demonstrated ‘‘strong,
often overwhelming, correlations’’ between people’s policy preferences and
their support for the Court. During this period of high profile judicial
liberalism, people got the (correct) impression that the Court was moving
policy to the left, which strongly influenced their support for the Court.
Public Response to the Court’s Right Turn
Surprisingly, however, the strong support of liberals relative to conservatives
extended well past the liberal Warren Court era into the decidedly
conservative Rehnquist Court era. Since 1974, the General Social Survey
has asked Americans how much confidence they have in the Supreme Court,
which is a measure of support for the present set of Justices (Gibson,
Caldeira, and Spence 2003a).3 The broken line in figure 1 tracks the
difference in the mean confidence of liberals relative to conservatives over
1. Gibson and Caldeira’s (1992) analysis of diffuse support for the Court found that, among
well-informed opinion leaders, such support was conditioned on support for the policy outputs of
the Court. This finding may highlight the importance of information and motivation in forming
evaluations of the Court.
2. These policy preferences were correlated with both specific and diffuse support for the Court.
See our discussion of diffuse and specific support subsequently.
3. Gibson, Caldeira, and Spence (2003a) conclude that confidence in the Court ‘‘seems to
indicate relatively short-term but nonetheless global judgments of how the institution is
performing’’.
Evaluations of the U.S. Supreme Court
43
0.15
6
Confidence difference (L-C)
5
Justice ideology
0.1
4
2
1
0
Kennedy Johnson Nixon
Ford
Carter
Reagan Reagan
I
II
HW
Bush
Clinton
I
Clinton
II
0
−1
−0.05
Justices ideology
Confidence in court
3
0.05
−2
−3
−0.1
−4
−0.15
−5
Presidential administration
Figure 1. Liberal Affinity for the Supreme Court Relative to the Court’s
Actual ideology, 1961–2000.
this time series. Since higher scores indicate more confidence in the Court,
positive numbers reflect that liberals express more confidence than
conservatives and negative numbers reflect greater confidence among
conservatives than liberals. For each time period, the mean is greater than
0.4 It was largest during the Ford and Carter administrations and smallest
during Reagan’s first term. Importantly, however, the mean difference
between liberals and conservatives grew larger through the 1980s and 1990s,
reaching about the same level in Clinton’s second term as in the 1970s.5
This is odd because the solid line in figure 1, which reflects the sum of the
ideological scores of sitting Supreme Court Justices from 1960 through 2000
(Segal et al. 1995), suggests the Court has become much more conservative
4. The GSS asked this question 19 times between 1974 and 2000. We aggregate these sometimes
annual and sometimes bi-annual observations to correspond to presidential administrations to
ease presentation. If we track all years, the mean difference appears to bounce up and down from
year to year, but this is due to random error inherent in survey data. Since the mean differences
were never statistically different within a given presidential term, we broke the data down in this
way. We should note, however, that the pattern of results is the same no matter how they are
presented.
5. It is not that liberals always tend to evaluate government more favorably than conservatives.
For example, conservatives express more trust in government than do liberals when Republicans
occupy the White House (Citrin 1974). Similarly, conservatives approve more of Congress than
do liberals when Republicans hold the majority (Sapiro, Rosenstone, and the National Election
Study 2002).
44
Hetherington and Smith
Court more
liberal than
Public
2
1.5
1
0.5
Court more
conservative
than Public
74
19
76
19
78
19
80
19
82
19
84
19
86
19
88
19
90
19
92
19
94
19
96
19
98
20
00
72
19
19
68
70
19
66
19
64
19
62
19
19
19
60
0
−0.5
−1
−1.5
−2
−2.5
−3
Year
Figure 2. Degree to which the Supreme Court is More Liberal than the
Public Policy Mood, 1960–2000.
over time. Consistent with the conventional wisdom, Justices were most
liberal during the Johnson years, and, even after several Republican
appointments, remained moderate through most of the 1980s. A decided
turn to the right then occurred.
A continued preference for the Court among liberals would be rational if
the public had moved to the right along with the Court, which would maintain
a constant ideological distance between the public’s policy preferences
and the Court’s (see Durr, Martin, and Wolbrecht 2000 for a discussion
of ideological divergence). This, however, has not occurred. Figure 2 tracks
the degree to which judicial ideology and the public’s ideology have
corresponded over time. To measure judicial ideology, we use the Segal
and Cover scores from above. To measure the public’s ideology, we use
Stimson’s policy mood data.
Since they are measured on different scales, we cannot compare these
measures directly. Using the data from 1960 to 2000, we standardize both,
calculating how many standard deviations a given annual observation is from
its time series mean. We then take the difference between the number
of standard deviations from its mean the Court’s ideology is and the number
of standard deviations from its mean the public mood is. The larger this
difference, the more liberal the Court is relative to the public mood.
For example, in 1975, judicial ideology was 0.16 and policy mood was
56.56. The mean and standard deviation for these measures over the 40 year
period were 0.26 and 3.25 for judicial ideology and 61.01 and 4.48 for
policy mood. The observation that appears in figure 2 for 1975, then,
is calculated as [(0.16 0.26)/3.25] [(56.56 61.01)/4.48] ¼ 1.01.
Scores above 0 indicate that the Court is to the left of public opinion, and
scores below 0 indicate that the Court is to the right of it.
Evaluations of the U.S. Supreme Court
45
From the mid-1960s to the mid-1980s, the Court was well to the left of
public opinion. Hence the fact that liberals liked the Court so well is rational.
The combination of Reagan’s more conservative appointments and a liberal
turn in the policy mood brought the two trends together in the mid-1980s.
After that, the Court moved well to the right of the public’s policy mood.
Although the line tracks back toward the midpoint in the late 1990s, the
public was still a full standard deviation more liberal than the Court in 1997,
the year our data are taken. If people had correctly perceived the Court’s
right turn, conservatives should have come to like it better than liberals by
the 1990s. The data in figure 1, however, demonstrate this did not occur.
Information about the Court’s Activities
Why, then, did liberals continue to like the Court better than conservatives?
It could be that the public does not evaluate the Court on the basis of its policy
decisions, but this is at odds with previous research. A more plausible answer
lies in the information environment.6 While the media can make decisions
salient (Caldeira 1987), awareness generally deteriorates quickly (Mondak and
Smithey 1997). Usually less than half of Americans can describe the substance
of even the highest profile Court decisions of the past 50 years (see Delli
Carpini and Keeter 1996, 70–71). Since the Court receives little coverage and
since this information seems to have a limited cognitive shelf-life, few will
have the information necessary to evaluate its ideology correctly.
To the extent that the public knows about specific decisions, they know
much more about dated ones than recent ones. For example, people in the
1980s were significantly better able to explain the substance of Warren Court
decisions, such as Brown v. Board of Education (55 percent correct) and
Miranda v. Arizona (45 percent correct), than recent Rehnquist Court
decisions, such as Webster v. Reproductive Health Services (29 percent
correct) (Delli Carpini and Keeter 1996, Chapter 2). These differences are
remarkable since more than 25 years had passed since the Brown and Miranda
decisions while Webster was only months old when these surveys were taken.
A relative lack of information about more recent decisions is a plausible
explanation. Typically, the news media do not provide much information about
the Supreme Court (Caldeira 1991; Franklin and Kosaki 1995). News norms,
however, dictate that the media will provide significantly more coverage to
stories that produce large deviations from existing norms (Graber 1997).
Hence, when the Court was integrating schools and assuring abortion rights
6. Many studies have shown that public knowledge of the Court in general is very weak. For
example, usually fewer than 10 percent of respondents could identify William Rehnquist as Chief
Justice even when spotted with his name (Sapiro, Rosenstone, and the National Election Study
2002), and about the same percentage realize that the Supreme Court does not hear all federal
cases (Delli Carpini and Keeter 1996).
46
Hetherington and Smith
as the Warren Court did, they were bound to get a great deal of attention.
Information about the Court is apt to be less prevalent during the Rehnquist
era, given the incremental nature of its decisions.
CONTENT ANALYSIS
To provide a sense of the information environment, we used Lexis-Nexis
to search for references to specific Court decisions that might have provided
the public with a sense of the Court’s conservative turn. Specifically,
we searched for mentions of case names in the full texts of articles in the
New York Times. Our results appear in table 1.
In the 1990s, the Court decided three cases that allow for the resegregation
of public schools (Orfield and Yun 1999), Board of Education v. Dowell
(1991), Freeman v. Pitts (1992), and Missouri v. Jenkins (1995). In the year
that each was decided, they received, 3, 9, and 9 references in the Times,
respectively. References to these cases then nearly disappeared. For example,
from 1993 to 1997, the year the data for our study were taken, the Dowell
and Freeman cases generated only two references combined. In the second
and third years following Missouri v. Jenkins, it received a total of two
references.7 Compare this with media treatment of forty year old Brown v.
Board of Education. From 1991 to 1997, Brown received 217 mentions in
the New York Times.
We find a similar pattern with reporting about criminal rights and abortion
rights issues. The Court’s 1995 decision allowing prosecutors to use evidence
seized with a defective warrant, Arizona v. Evans, received three mentions
from the Times between 1995 and 1997. In contrast, Miranda v. Arizona
received 29 references over the same period. Similarly, Planned Parenthood
v. Casey, a case that limited abortion rights, produced 59 mentions from 1991
to 1997, while Roe v. Wade racked up 603 or 10 times the number of Casey
references. It seems that the media not only give short shrift to more current
decisions, they continue to focus much attention on decades-old ones.8
7. Coverage of these cases in papers with less reach than the Times is even more scarce. LexisNexis archives five papers other than the Washington Post and New York Times with holdings
back to 1990. They are the St Louis Post-Dispatch, Miami Herald, Seattle Times, San Francisco
Examiner, and St Petersburg Times. In these five papers combined, the school resegregation cases
received a total of three mentions from the beginning of 1990 through the end of 1997. All three
were about Missouri v. Jenkins, and all appeared in the St Louis Dispatch, a paper local to this
case.
8. It is true that not all of these decisions from the late 1980s and early 1990s were presented in
the press as unambiguously conservative. In particular, the two decisions concerning abortion
rights were preceded by speculation that the Court would completely invalidate the right to
abortion. When, instead, the Court merely approved significant new restrictions on access to
abortion, the decision was frequently presented as less conservative than it might have been.
Such presentations no doubt contributed to the fuzzy picture of the Court’s ideological nature
held by many Americans. However, for our purposes the important point is that these cases
show the Court has moved in a conservative direction since the early 1970s.
Public School Segregation
1991
1992
1993
1994
1995
1996
1997
Total
Criminal Rights
Abortion Rights
Board v.
Dowell
(1991)
Freeman v.
Pitts
(1992)
Missouri v.
Jenkins
(1995)
Brown v.
Board
(1954)
Arizona v.
Evans
(1995)
Miranda v.
Arizona
(1966)
Planned
Parenthood v.
Casey (1992)
Roe v.
Wade
(1973)
3
1
0
1
0
0
0
5
–
9
0
1
0
0
1
11
–
–
–
–
9
0
2
11
39
20
35
38
24
26
35
217
–
–
–
–
3
0
0
3
13
9
12
8
5
11
13
71
–
22
12
11
1
8
5
59
130
167
99
59
47
52
49
603
Evaluations of the U.S. Supreme Court
Table 1. Mentions in New York Times of Particular Supreme Court Decisions
47
48
Hetherington and Smith
Few references to the dated cases suggest that they were under assault by
the current Court. For example, only 6 of the 27 articles about the three 1990s
school resegregation cases even mention Brown. This, of course, also implies
that only 6 of the 217 articles that mention Brown also mention one of
the school resegregation cases. Many articles do note the glacial pace of
integration in the U.S., but societal factors, such as residential segregation
and whites’ racial attitudes, are cited as explanations, not recent Supreme
Court decisions that facilitate school re-segregation.
A disproportionate number of the Brown references (62 over the period)
dealt with the retirements and deaths of two important figures in the Brown
decision and its extension to northern school districts, Thurgood Marshall
and William Brennan. In addition, Brown received prominent play in 1993
and 1994 when Justices Ginsberg and Breyer were nominated in the year
before and the year of the 40th anniversary of the landmark decision.
Although many of these articles featured Justices who are no longer on the
Court, such coverage ought to put Brown on tops of people’s heads when
they think about the Court, which will make it disproportionately important
in guiding evaluations (Zaller 1992).
Looking below the raw numbers in our content analysis, Roe v. Wade
emerges as the benchmark for understanding judicial ideology. Fully
115 mentions of Roe are accompanied by the word ‘‘nomination.’’ In
a particularly striking case, Times law correspondent Neil Lewis discussed
the implausibility of Clarence Thomas’ assertion during his nomination
hearings that he had never discussed Roe v. Wade. Such references are
important for two reasons. First, since members of the Senate asked Thomas
about Roe, it indicates that they believe Roe is significant in understanding
judicial ideology. Second, journalists have consequently adopted Roe as their
baseline for understanding what makes a prospective Justice either liberal or
conservative. If elites use this lens, the public will be overwhelmingly likely
to adopt it (Carmines and Stimson 1989; Zaller 1992).
Since the Rehnquist Court did not formally overturn decisions like Roe,
some might argue that people correctly perceived it as liberal. We disagree.
The Court retreated on its landmark liberal rulings. Regarding Roe,
specifically, the Rehnquist Court watered down the protections for this
right significantly. The 1973 decision permitted no regulation of abortion
during the first trimester of pregnancy, and permitted regulation of secondtrimester abortions only for the benefit of the mother’s health. The Court’s
1992 decision in Planned Parenthood v. Casey entirely throws out Roe’s
trimester approach and allows state regulation of abortion throughout the
pregnancy. Casey also explicitly allows states to require women to read antiabortion arguments before choosing abortion, and that they wait 24 hours
after acknowledging such information before obtaining an abortion.
The same pattern holds for school segregation. For 17 years after Brown,
the Court consistently and unanimously ruled in favor of an expanding notion
Evaluations of the U.S. Supreme Court
49
90
Baum (1988, 1994) adjusted scores
80
Baum (2004) adjusted scores
70
Percent
60
50
40
30
20
10
19
58
19
61
19
64
19
67
19
70
19
73
19
76
19
79
19
82
19
85
19
88
19
91
19
94
19
97
0
Year
Figure 3. Percent Liberal Decisions on Civil Liberties Claims, Baum
scores, 1958–1998.
of school integration. However, throughout the late 1980s and 1990s, the
Court consistently released districts from desegregation and integration plans,
setting the stage for resegregation of the public schools. Likewise, the
Rehnquist Court established significant exceptions to the broad protections
for people accused of crimes announced by the Warren Court. In particular,
evidence and confessions obtained as a result of illegal police activity are
now routinely used in criminal trials.9
Beyond its retreat from specific liberal landmark decisions, the Court’s
decisions grew more conservative overall. Figure 3 presents Baum’s (1988,
1994, 2001) measure of the proportion of the Court’s civil liberties decisions
that favored a liberal outcome. Like the collective ideology of the Justices
themselves, which we presented in figure 1, these data show that Court
outputs have been moving to the right over the last four decades as well.
In the 1960s, which was when scholars began to show liberals’ relative
affinity for the Court (Murphy and Tannenhaus 1968), nearly 70 percent
of civil liberties parties won. When Roe was decided in 1973, the Court
decided 55 percent of civil liberties cases in a liberal direction, and
public opinion continued to show a bias toward the Court by liberals
(Tannehaus and Murphy 1981; Adamany and Grossman 1983). By the end of
9. See, for example, U.S. v. Leon, Arizona v. Evans, New York v. Harris, Arizona v. Fulminante.
50
Hetherington and Smith
the 1990s, the percentage of liberal outcomes had fallen to 40 by even the most
generous measure, yet liberals still liked the Court better than conservatives.
THE IMPLICATIONS OF SCARCE INFORMATION
Our content analysis suggests that Americans receive little information about
recent Court decisions. Consider, for example, just how rare stories about the
resegregation cases are. Over the period of our content analysis, the nation’s
most prominent newspaper mentioned these three cases, on average, less
than one-tenth of one time per week (27 mentions over 350 weeks). Unless
a person was paying very close attention, he or she would have almost no
chance of knowing about them.
A lack of information has important implications. Public opinion
change is largely a function of recent elite discourse carried through the
news media (Zaller 1992). Without much new information, people have
little reason to change their minds. And, even if people do receive
a limited amount of new information, they are unlikely to accept it if it
does not jibe with their preexisting view (Zaller 1992). Given that the
Warren Court era provided the public with an impression of the Supreme
Court as a liberal institution (Murphy and Tanenhaus 1968; Tanenhaus
and Murphy 1981; Adamany and Grossman 1986; Caldeira 1991),
a smattering of stories about the Court’s conservatism will either be missed
entirely by most Americans or, if consumed, filtered out as anomalous
(Johnson and Martin 1998).
There are, however, certain instances when people can and do overcome
this relative lack of information. Specifically, when motivation to integrate
new information is high, the likelihood that public opinion will change
increases (Kuklinski et al. 2001; Petty and Cacioppo 1986).10 This likely
explains Hoekstra’s (2000) finding that Supreme Court decisions have a
significant effect on support for the Court in the local communities where the
controversies began. In such areas, the public’s motivation to follow the
controversy is bound to be high, and local media are more likely to provide
high quality information (see also Hoekstra and Segal 1996).
Good media coverage combined with a high level of public motivation is
not, however, the norm. Our content analysis suggests that even the elite
media provide little information about recent Court outputs, focusing instead
on prominent past decisions. In addition, because the Court is a non-elective
body, people have no direct influence on it, greatly reducing their motivation
to monitor its recent decisions. While support for the Court may vary based
on recent decisions among small subsets of Americans (Hoekstra 2000),
this is unlikely to be the case for most. Instead, support for the Rehnquist
Court is likely driven by a residue of information about the Warren Court,
10. Kuklinski et al. (2001) use the term motivation, while Petty and Cacioppo (1986) use the
term relevance in much the same manner.
Evaluations of the U.S. Supreme Court
51
its most recent high profile era, even though it was ideologically quite
different from the Rehnquist Court.
Explaining Support for the Supreme Court
Over the last 25 years, the National Election Study has rarely asked questions
about the U.S. Supreme Court. Indeed, since 1980, the U.S. Supreme Court
feeling thermometer has been the only question asked in the NES’s full
biennial survey. As a measure of support, the feeling thermometer is
problematic for a number of reasons. Most importantly, it is not at all clear
what people have in mind when answering the question. Since the
questionnaire provides respondents no context, some might be considering
the Court as a political institution, or what Easton (1965b) might characterize
as diffuse support, and some may be considering the present group of Justices,
or what Easton might characterize as specific support. Little wonder, then, that
scholars have been hard pressed to explain much variance in feeling
thermometers about institutions (see, e.g. Hibbing and Theiss-Morse 1998;
Hetherington 1998).
Herein lies a significant problem in the study of political support. Can
survey questions in combination with the survey instrument encourage people
to provide meaningful responses? And, if so, what types of public support
are significant for the proper functioning of a representative democracy?
Although separating these two dimensions is empirically problematic
(e.g., Hetherington 1998), evidence suggests that careful question wording
combined with a helpful context provided by the survey instrument itself can
direct at least most respondents in the proper direction (see e.g., Caldeira
and Gibson 1992; Gibson and Caldeira 1992). As for the latter question, some
contend that Easton’s specific support is of limited consequence given its
emphasis on shorter-term evaluations, thus focusing on measures of diffuse
support.
Many scholars, however, have come to consider the Eastonian distinction
between specific and diffuse support conceptually tautological (for details,
see Craig 1993, 9; Hibbing and Theiss-Morse 1995, 13), arguing that scholars
should treat political support more broadly rather than focusing only on
support for the regime. Even if one accepts the Eastonian distinction,
moreover, it seems likely that, if people disapprove of the authorities who
occupy an institution over a long period of time, their support for the
institution itself and their willingness to respect its decisions will erode
(Gamson 1968; but see Gibson, Caldeira and Spence 2003b who suggest
the causal arrow runs in the opposite direction for the Court). Hence we
follow Hibbing and Theiss-Morse’s (1995, 13) treatment of political support
as a ‘‘running tally’’ of positive and negative institutional features at the time
of the survey.
52
Hetherington and Smith
Although the full NES largely ignores the Supreme Court, a 1997 Pilot
Study asked how well a series of phrases described it. These included
‘‘doesn’t get much accomplished,’’ ‘‘doesn’t care what ordinary Americans
think,’’ ‘‘is corrupt,’’ and ‘‘is too involved in partisan politics.’’ The exact
wording appears in appendix A. The context of the questionnaire encouraged
respondents to consider the present Court. Specifically, respondents were
asked to evaluate the Court directly after they were asked to evaluate Bill
Clinton, the sitting president, on this same set of questions. Importantly,
however, respondents were asked about four normatively important
dimensions of institutional behavior, so these questions are not tapping
trivial short-term considerations. For each of the four items describing the
Court, respondents were given four options ranging from ‘‘not well at all’’ to
‘‘extremely well.’’ We array them so that more positive assessments are at
the top of the scale. Therefore, if increases in the independent variables cause
more positive evaluations, their estimated effects will carry positive signs.
INDEPENDENT VARIABLES
To explain variation in these evaluations, we introduce a range of
independent variables that fall into several broad categories: issue positions
and partisan predispositions, orientations toward government, and social
characteristics. We are most interested in the issue positions. Specifically,
we employ four separate issue domains—African-American issues, women’s
issues, traditional left–right ideology, and crime. Since the Rehnquist Court
took a different ideological tack in each of these specific areas compared with
the Warren Court, including measures to tap people’s preferences in all these
areas provides us a sense about whether the public has correctly perceived
any of these changes.
This approach is necessarily inferential. Ideally, researchers would have
data on whether people approved of specific Supreme Court decisions, and
use these to test whether these opinions influence support for the Court.
Unfortunately, no such questions on specific Supreme Court decisions have
been asked on surveys. Moreover, it is unlikely that many respondents could
correctly recall specific Court decisions. Therefore, researchers using crosssectional data have traditionally taken this inferential approach to make the
plausible leap that a person’s support for the Court was the product of his
or her satisfaction with the Court’s outputs (Murphy and Tanenhaus 1968;
Tanenhaus and Murphy 1981; Adamany and Grossman 1983, Caldeira and
Gibson 1992).
To operationalize African-American issues, we combine responses to
five questions—support for aid to blacks, support for affirmative action,
an assessment of whether blacks should receive any special favors, an
assessment of whether blacks try hard enough, and support for a federal role
ensuring fair treatment in jobs for blacks. If, as we expect, public evaluations
Evaluations of the U.S. Supreme Court
53
of the Rehnquist Court are based on Warren Court era decisions, those
who are more conservative on African-American issues should be less
supportive (Tanenhaus and Murphy 1981). If, however, people have updated
their evaluations based on more recent Court decisions, this variable should
carry a positive sign. The same pattern should hold for women’s issues.
To operationalize this concept, we combine responses to two items—support
for women’s rights and support for abortion rights.
In addition, we employ a general set of scope of government items to tap
a traditional left–right dimension. These items include opinions on whether
government guarantee jobs and a minimum standard of living, preferred
levels of government services and spending, and government involvement
in health care. If respondents sense a general bias to the right or left, this
variable should reflect it (see also Tanenhaus and Murphy 1981). Finally,
we also include the degree to which a person is fearful of being the victim
of crime. Those who are more fearful should evaluate the Rhenquist
Court positively if they are basing their evaluations on the Rehnquist Court,
but negatively if they are thinking of the Warren Court (see also Caldeira
1986, using aggregate data).
For the three issue domains, we array responses from most liberal opinions
to most conservative, and we array the crime dimension from least to most
fearful of crime. To conserve cases, we require only one valid response for
each index.11
We tap partisanship using the traditional seven point scale arrayed from
strong Democrat to strong Republican. Similar to the overall scope of
government scale, this variable should tap general evaluations of the direction
of the Court. Given that we are interested in evaluations of a particular branch
of government, general orientations toward the entire government should
also be influential. Specifically, we include both political trust and external
efficacy. The trust measure is the respondent’s score on the NES’s trust item
in 1997, which asks how often respondents believe the federal government
can be trusted to do what is right. External efficacy is a measure of how
responsive the respondent perceives the government to be. The 1997 Pilot
Study measures this attitude by asking respondents how much they agree with
the statement, ‘‘People like me don’t have any say in what the government
does.’’ Those who are more trustful and believe government is more attentive
to their wishes should provide more positive evaluations.12
Finally, we include a range of social characteristics. Gibson and Caldeira
(1992) find African-Americans to be less supportive of the Court than whites.
11. Confirmatory factor analysis reveals that each issue index respectively loads on a common
factor.
12. We employ these controls mostly to make certain that our variables of interest, the issue
domains, do not receive more explanatory credit than they deserve. If we do not include political
trust and external efficacy on the right hand side, our results for the variables of interest are even
stronger than those reported here.
54
Hetherington and Smith
Those with higher levels of education have spent more time being socialized
to the norms of American political life and should, therefore, provide more
positive evaluations (Caldeira and Gibson 1992). To make our estimates more
secure, we control for age and gender as well.
Data and Methods
We use data from the National Election Study’s 1997 Pilot Study. Between
September 5 and October 1, 1997, the NES re-interviewed 551 people from
its 1996 Pre- and Post-Election Study. While all of the dependent variables
and many of the independent variables are drawn from the 1997 interviews,
several variables come from responses in 1996, including most of the issue
index components. Specifically, the aid to blacks, fair treatment in hiring,
support for affirmative action, support for women’s equality, support for
abortion rights, fear of crime, and each of the traditional scope of government
items come from the 1996 Study. Given the renowned lack of constraint
in issue positions among ordinary Americans (Converse 1964), significant
effects among the issue indexes will be particularly impressive since most of
these opinions were measured nearly a year prior to the dependent variables.
Although using a pilot study is less than ideal, it is necessary because of the
lack of items about the Supreme Court in NES studies over the entire period
of the Court’s conservative turn. In reporting our results, however, we take
care to avoid overdrawing inferences.
Results
Given that the Supreme Court items employed here are novel, we begin by
presenting in table 2 frequency distributions for the four items.
Table 2. Frequency Distributions for Supreme Court Evaluations
Not Well At All
Not Too Well
Quite Well
Extremely Well
Number of Cases
Missing Cases
Doesn’t Get
Much
Accomplished
Doesn’t Care
What Ordinary
Americans Think
Corrupt
Too Involved in
Partisan Politics
21
51
24
5
18
42
29
11
40
43
13
4
20
53
22
4
540
11
534
17
527
24
508
43
SOURCE American National Election Pilot Study, 1997.
NOTE.—Table Entries are Column Percentages.
Evaluations of the U.S. Supreme Court
55
Overall, public response to the Rehnquist Court was quite positive. More than
80 percent thought that it was not corrupt, and better than 70 percent thought
both that it got at least a fair amount accomplished and that it was not too
partisan. Although a somewhat smaller percentage thought that the Rehnquist
Court cared about ordinary Americans, 60 percent of respondents fell into
the favorable categories as well. When people provided more negative
evaluations, moreover, they tended not to be particularly critical. Generally
fewer than 10 percent of respondents fell into the most hostile category for
each of these items, and most often five percent or fewer did.
Our task is to explain variation in these items. Confirmatory factor analysis
suggests that the four questions load on a single factor, so we compute an
average score, and map it onto a (0, 1) interval. Since the mean of the four
items more closely approximates an interval scale, we can use ordinary least
squares. This allows us more interpretable results and affords us a more
elegant presentation of the models when we introduce interactions later in the
analysis. To minimize the loss of data, we require that respondents supply
only one valid response.13
The first column of table 3 contains the estimates explaining variation
in this mean evaluation of the Rehnquist Court. Most important for our
purposes, the effect of African-American issues, women’s issues, and fear
of crime are all negatively signed and statistically significant. As expected,
those who are most conservative on the issues and fearful of crime are least
supportive of the Court. Among the issue indexes, only the traditional left–
right dimension fails to achieve statistical significance. In addition, more
political trust and more external efficacy cause more favorable evaluations
of the Court, and education approaches statistical significance. Neither
party identification, nor being a woman, or African-American, or older
affects opinions.
Since all independent and dependent variables are on a (0, 1) interval,
parameter estimates reflect the effect of a given explanatory variable across
its range as a percentage of the dependent variable’s range. For example,
moving from least trustful to most trustful of the government increases
the mean evaluation of the Court by 0.149 points, or 14.9 percent of the
dependent variable’s range. Not surprisingly, trust’s effect is the largest with
that of external efficacy second. Excepting these global orientations toward
government, however, the effects of the issue indexes are impressive. Moving
from most liberal to most conservative on the African-American issues and
women’s issues scales decreases the mean evaluation of the Court by about
8.6 and 6.4 percent, respectively. Fear of crime’s effect is about 7 percent
across its range.
Taken together, these results support our hypotheses. It appears that
most Americans did not perceive the Court’s right turn between the
13. Alternative methods of handling missing data produce the same substantive results.
56
Hetherington and Smith
Table 3. Support for the Supreme Court as a Function of Issue Positions,
Partisan Predispositions, Orientations Toward Government, and Social
Characteristics Ordinary Least Squares Estimates
Variable
Intercept
Party Identification
African-American Issues
Women’s Issues
Traditional Left-Right Issues
Fear of Crime
Political Trust
External Efficacy
Sex (Female)
Race (African-American)
Education
Age
Political Knowledge
African-American Issues Political Knowledge
Women’s Issues Political Knowledge
Traditional Left-Right Issues Political Knowledge
Fear of Crime Political Knowledge
Adjusted R2
Number of Cases
Baseline Model
Parameter Estimate
(Standard Error)
Interactive Model
Parameter Estimate
(Standard Error)
0.627***
(0.047)
0.036
(0.027)
0.086*
(0.043)
0.064**
(0.027)
0.028
(0.043)
0.070**
(0.027)
0.149***
(0.033)
0.107**
(0.028)
0.029
(0.017)
0.010
(0.032)
0.063
(0.035)
0.023*
(0.037)
–
0.527***
(0.036)
0.036
(0.028)
0.006
(0.101)
0.028
(0.055)
0.060
(0.088)
0.044
(0.059)
0.153***
(0.033)
0.098**
(0.029)
0.019
(0.018)
0.000
(0.033)
0.042
(0.037)
0.043
(0.039)
0.110
(0.121)
0.127
(0.154)
0.059
(0.093)
0.152
(0.148)
0.052
(0.100)
.15
507
–
–
–
–
.15
507
*p5.05, **p5.01, ***p5.001 – two-tailed tests.
SOURCE American National Election Pilot Study, 1997.
Evaluations of the U.S. Supreme Court
57
1970s and 1990s. Liberals continued to evaluate the Court more favorably
than did conservatives even after a spate of school resegregation,
anti-affirmative action, anti-abortion rights, and anti-criminal rights decisions
in the early to the mid-1990s.
EVALUATIONS OF THE COURT BY POLITICAL KNOWLEDGE
We established earlier that the news media do not appear to provide enough
information about the Supreme Court to allow people to assess its ideology
correctly. As a result, the public may continue to evaluate the Court using
information about dated decisions, which the news media continue to
highlight. Of course, this might not be true of all people. Those with more
political expertise might be able to use the information environment better
than those with less.
We test this hypothesis by making several changes to the baseline model.
First, we introduce a measure of political knowledge. We tap knowledge
using a 10 item scale, which asks respondents, among other things, to identify
what office people such as Al Gore, Newt Gingrich, and Boris Yeltsin hold,
which party is more conservative, and which controls each branch of
Congress. Respondents receive one point for each correct answer. Much
research suggests that this is the best available measure of political acuity
(e.g., Luskin 1987; Zaller 1992).
In addition, we add a series of interactions between political knowledge
and the various issue domains. If those with more political information were
better able to perceive the Court’s right turn, it should be manifested in
positive and significant effects for the interaction between the knowledge and
the issue domains. Should these interactions produce insignificant results,
it suggests that knowledge alone fails to boost awareness.
The results appear in the second column of table 3. None of the knowledge
interactions even approaches statistical significance, with parameter estimates
usually much smaller than their standard errors.14 Moreover, these
interactions most often carry a negative sign, exactly opposite the direction
of effect that would suggest increased learning among the more political
sophisticated. Whether the result of an arid information environment or
a lack of motivation to integrate new information, political knowledge
alone does not help Americans form ideologically accurate evaluations of the
Supreme Court.
THE EFFECT OF MOTIVATION COMBINED WITH KNOWLEDGE
Perhaps, citizens require a personal stake in the decisions as well. Even in the
absence of much information, those who are the most motivated to find and
14. We should note that multicollinearity is not a problem despite the multiple interactions
with political knowledge. To make certain, we included an interaction between each given issue
domain and knowledge separately into four models. The results were consistent with those
presented here.
58
Hetherington and Smith
integrate it will be able to do so (Kuklinski et al. 2001; Petty and Cacioppo
1986). Scholars of the Supreme Court have discovered the importance of
motivation in understanding the public’s assessments of it. Specifically,
although Court decisions have a minimal effect on most people’s opinion
about the Court, they do have an effect among people in the communities
where judicial disputes originated (Hoekstra 2000). These people are
motivated to follow recent developments. Certain identifiable groups whose
interests might have been affected by recent Court decisions ought to be
similarly motivated as well. A combination of high motivation and significant
political knowledge might allow some to follow the trickle of new
information to update their opinions.
If any group of Americans should have been motivated to follow Court
decisions in 1997, it was African-Americans. On a broad range of topics, the
Rehnquist Court showed very little sympathy for their interests. In the 1990s,
the Court overturned electoral districts that increased representation for
blacks (Bush v. Vera and Shaw v. Hunt). Court decisions in 1991 and 1992
made it easier for districts to end their efforts to achieve integrated schools
(Board of Education v. Dowell, and Freeman v. Pitts). In Adarand v. Pena
(1995), the Court ruled that federal programs designed to provide increased
opportunities for minorities must pass strict judicial scrutiny. In 1996, the
Court upheld a reduced sentence for the white police officers who brutally
beat Rodney King (Koon v. U.S.), and the Court rebuffed an argument that
the federal government unfairly targeted blacks for prosecution under federal
crack-cocaine law (U.S. v. Armstrong). All these decisions would have given
an attentive African-American the impression that the Supreme Court was
not on his or her side.15
African-Americans, specifically, will be the most motivated to follow
Court decisions in the African-American issue domain because these rulings
have the potential to affect them directly (Gibson and Caldeira 1992, 1139).
In addition, our content analysis shows that the media presented little current
information about the Court and even less about issues that affected AfricanAmericans. Hence attentiveness, which is best tapped by political knowledge,
is important. To test our hypothesis, we add to our model a three-way
interaction between African-American issues, political knowledge, and being
African-American. In addition, we include all potential two-way interaction
permutations to make more secure the estimates of the three-way interaction.
Since we expect that knowledgeable African-Americans might have had
the motivation and the information to follow the Court’s rightward drift in
15. To be fair, the Rehnquist Court did make some decisions that maintained the victories for
civil rights won in previous decades. In 1992 it ruled that the Mississippi University System had
not yet eliminated race discrimination (U.S. v. Fordice, 505 U.S. 717) and in 1997 it upheld
a majority-minority district in Florida (Lawyer v. Department of Justice, 521 U.S. 567).
On balance, however, the Rehnquist Court’s recent decisions have not been particularly helpful to
African-Americans.
Evaluations of the U.S. Supreme Court
59
Table 4. Nonadditive Model Using Motivation and Knowledge to Explain
Support for the Supreme Court Ordinary Least Squares Estimates
Variable
African-American Issues
Political Knowledge
African-American
African-American Issues Political Knowledge
Political Knowledge African-American
African-American Issues African-American
African American Issues Political Knowledge African-American
Adjusted R2
Number of Cases
Parameter Estimate
(Standard Error)
0.019
(0.106)
0.186
(0.107)
0.298
(0.176)
0.175
(0.155)
0.728*
(0.314)
0.554
(0.342)
1.511*
(0.694)
.16
507
*p5.05, **p5.01, ***p5.001 – two-tailed tests.
SOURCE American National Election Pilot Study, 1997.
this issue domain, the sign on the three-way interaction should be positive and
the effect significant. This would indicate that, among more knowledgeable
African-Americans, more conservative policy positions produce favorable
evaluations of the Court while more liberal positions produce more negative
evaluations.16
In fact, the results, which appear in table 4, follow the expected pattern.
Most important, the three way interaction is positive and significant. Since
the effects of all the variables not included in the interaction are
basically the same as in the previous model, we do not include them in
table 4. The total effect of African American issues is calculated by taking
16. Some might express concern about the necessarily small subsample of African-Americans
upon which this analysis rests. Of course, this is a problem with the use of any national
probability sample to make inferences about African-American’s attitudes. While this is certainly
a concern, the problem most scholars encounter is substantively significant but statistically
insignificant parameter estimates, which result from the large standard errors produced by a small
subsample size (see Kinder and Sanders 1996, for a review). The fact that we find a statistically
significant result for the interaction, a result that holds up with alternative specifications, speaks
to the fact that this result is both noteworthy and robust.
60
Hetherington and Smith
the first derivative of the model with respect to African-American issues. This
yields:
Effect ðAfrican-American IssuesÞ ¼ AAIssues þ AAIssue Knowledge
ðPolitical KnowledgeÞ
þ AAIssue African-American
ðRespondent is African-AmericanÞ
þ AAIssue Knowledge African-American
ðPolitical Knowledge
ðRespondent is African-AmericanÞ:
We are most interested in the effect among African-Americans,
so the dummy variable for being African-American is equal to 1.
Hence the total effect of African-American issues among this group
reduces to:
Effect ðAfrican-American IssuesÞ ¼ AAIssues þ AAIssue Knowledge
ðPolitical KnowledgeÞ
þ AAIssue African-American
þ AAIssue Knowledge African -American
ðPolitical KnowledgeÞ:
Plugging the estimated effects from the model into equation (2),
we get 0.019 – (0.017 Knowledge) 0.554 þ (1.51 Knowledge). So, when
knowledge is high (Knowledge ¼ 0.8), the effect of African-American issues
is 0.659. The positive sign indicates that increasing conservatism greatly
increases favorable evaluations of the Court, just as it should for the
Rehnquist Court. Among less knowledgeable blacks, however, the effect of
African-American issues remains negative. For example, when we set
knowledge to 0.2, the effect is 0.236. The negative sign suggests that this
group is using their issue positions on African-American issues incorrectly,
with racial liberals evaluating the Court more positively than racial
conservatives. In other words, African-Americans with less political
information have not followed the Court’s rightward drift.
We present the effect of this three-way interaction graphically in figure 4.
We demonstrate the effect of racial issue preferences for various knowledge
and racial groups by allowing African-American issues to vary from its
minimum to maximum and fixing knowledge and race at theoretically
interesting points while holding all other variables constant at their sample
means. The solid line depicts the effect of African-American issues among
high knowledge (knowledge ¼ 0.8) blacks. Its slope is positive and steep,
demonstrating that blacks with greater political knowledge followed the
Evaluations of the U.S. Supreme Court
61
1
High knowledge black
High knowledge white
Low knowledge black
Low knowledge white
Support for court
0.9
0.8
0.7
0.6
0.5
0.4
Liberal
Conservative
Racial issue preference
Figure 4. Effect of Racial Issue Preference on Support for the Supreme
Court, by Knowledge and Race.
Court’s rightward drift on African-American issues. Among this group,
racial policy liberals were 50 percent less supportive of the Court than were
racial policy conservatives.
Consistent with the fact that our linear and additive model produced
a negative sign for African-American issues, all the other lines are negatively
sloped, although the line for low knowledge (knowledge ¼ 0.2) whites is
essentially flat. This latter finding makes sense because low knowledge
whites have neither much political information nor much motivation to
follow the Court in this issue domain. Both low knowledge (knowledge ¼ 0.2) blacks and high knowledge whites (knowledge ¼ 0.8) perceive
the Rehnquist Court incorrectly on African-American issues to a substantively significant degree. Among high knowledge whites, racial policy
liberals were 12 percentage points more supportive of the Court than racial
policy conservatives, other things being equal. Among low knowledge blacks,
the pattern is essentially the same.
In sum, both information and motivation are essential to allow people to
correctly align their ideological predispositions with the ideological direction
of the Court. Neither information nor motivation alone is sufficient.
Conclusion
We have demonstrated that Warren Court outputs continued to dominate
the public’s perceptions of the Supreme Court thirty years after its end.
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Hetherington and Smith
Just like 30 years before, liberals on racial and gender equality issues
evaluated the Court more positively than conservatives despite the Court’s
marked right turn. Information processing theories would predict this result.
News coverage in the 1990s made precious few references to conservative
Court outputs and continued to provide several times more references
to Warren Court decisions. Only a small subset of people possessing both
high levels of political information and the motivation to use it reached
correct conclusions.
The high political profile of the Warren Court probably explains the
shadow it casts over more contemporary perceptions. From 1954 to 1973,
the Supreme Court produced a body of extremely dramatic, high profile,
and ideologically consistent rulings across a wide variety of legal areas.
Additionally, it was the a focus of political controversy, such as the Southern
Manifesto, the moves to impeach Chief Justice Warren and Justices Douglas
and Fortas, not to mention Richard Nixon’s promise to appoint ‘‘law and
order’’ justices. Thus, the ideological nature of the Court’s output was
emphasized for the public by the elected branches’ discussions of it.
All combined to create a durable ideological impression in the public mind.
The stimulus since then has been quite a lot different. Although the Court
has made many important decisions since the early 1970s, they have
generally carried a lower profile. As a consequence, people know less about
Rehnquist Court decisions than decades-old Warren Court decisions
(Delli Carpini and Keeter 1996). Perhaps this is because the Rehnquist
Court chipped away at the Warren Court’s liberal rulings, rather than
dramatically overturning them. The highest-profile events during the
Rehnquist Court were appointment fights, and these centered as more often
on the personality and character of the nominees (Douglas Ginsburg smoking
marijuana with his law students, Clarence Thomas’ alleged sexual harassment
of Anita Hill) than ideology (Bork).
One dramatic exception was the Rehnquist Court’s Bush v. Gore decision
resolving the 2000 presidential election, and it helps illustrate our findings.
This case received a spectacular amount of media attention and had dramatic
implications like many of the Warren Court decisions did. Three important
evaluations of the impact of Bush v. Gore on public opinion about the Court
have been published (Kritzer 2001, Nicholson, and Howard 2003; Gibson,
Caldeira, and Spence 2003b),17 but it is Kritzer’s that provides us the best
perspective on our question. He finds that in the immediate aftermath of the
case, support for the Court plunged among Democrats and self-identified
17. Nicholson and Howard (2003) find that framing the decision in partisan terms causes the
same sort of changes that Kritzer noted. Gibson, Caldeira, and Spence (2003b) find that diffuse
support for the Court affects the way people integrate new information. That is, those who began
with positive impression of the Court as an institution were more likely to view Bush v. Gore
favorably.
Evaluations of the U.S. Supreme Court
63
liberals and surged among Republicans and self-identified conservatives.
These changes, moreover, persisted at least 6 months (Kritzer 2001).
Data from the General Social Survey in 2002 and Gallup in 2003
demonstrate that Republicans and conservatives continued to express more
confidence than Democrats and liberals, although the gap had eroded
since 2001. Such results are consistent with our theory. When the Court
makes a high profile decision, information becomes more plentiful,
which allows more people to use it. Prior to Bush v. Gore, our results
suggest that only the most motivated and knowledgeable had grasped the
Court’s rightward drift. After it, more of the public could evaluate the Court
based on a decision that clearly benefited a Republican.
The durability of these correct attitudes about the Court’s ideological
leanings remains questionable. Although conservatives were more favorable
than liberals from 2001 to 2003, liberals returned to expressing significantly
more confidence in the Court than did conservatives in 2004 according to
the General Social Survey. Moreover, a Fox News-Opinion Dynamics
Poll taken in late January 2006 again revealed that Americans taken as
a whole are much more likely to say that the Supreme Court is too liberal
(28 percent) than too conservative (17 percent), a remarkable finding given
that the survey was taken on the heels of the confirmation of Samuel Alito,
a Justice whose hearings were dominated by concerns about whether he
was too conservative.
It seems that only a series of ideologically consistent headline-grabbing
decisions, such as those produced by the Warren Court, are sufficient to
punch an impression into the minds of the mass public. Except among the
relatively few people paying attention to particular issues, this impression is
likely to last until a new Court replaces it with another consistent series of
headline-grabbing decisions. In his classic analysis of the role of the Supreme
Court in American politics, Robert McCloskey concluded that the Court
must never stray too far from mainstream public opinion, lest it trigger
a backlash against the exercise of policymaking power by a court
(McCloskey and Levinson 2000, 13–14). Our results suggest that such
caution may not be necessary, at least when relatively low profile issues that
receive little attention from the mass media dominate the Court’s business.
Under these conditions, the public is unlikely to notice that the Court has
strayed far from its preferences.
Acknowlegements
A previous version of this article was presented at the Annual Meeting of
the American Political Science Association, September 2–5, 1999, Atlanta,
GA. We wish to thank Larry Baum, John Geer, Suzanne Globetti, Stefanie
Lindquist, Robert Luskin, Bruce Oppenheimer, and Neal Tate for their
64
Hetherington and Smith
insights and suggestions. The data in this study were obtained from the InterUniversity Consortium for Political and Social Research. The Consortium
bears on responsibility for their use.
References
Adamany, David W., and Joel B. Grossman. 1983. ‘‘Support for the Supreme Court as a National
Policy Maker.’’ Law and Policy Quarterly 5(October):405–437.
Adarand v. Pena. 1995. 515 U.S. 200.
Arizona v. Evans. 1995. 514 U.S. 1.
Baum, Lawrence. 1988. ‘‘Measuring Policy Change on the U.S. Supreme Court.’’ American
Political Science Review 82(3):905–912.
Baum, Lawrence. 1994. ‘‘Measuring Policy Change in the Rehnquist Court.’’ American Politics
Quarterly 23(July):373–382.
Baum, Lawrence. 2001. The Supreme Court. Washington, DC: CQ Press.
Board of Education v. Dowell. (1991). 498 U.S. 237.
Brown v. Topeka Board of Education. (1954). 347 U.S. 483.
Bush v. Vera. 1996. 517 U.S. 952.
Caldeira, Gregory A. 1986. ‘‘Neither the Purse Nor the Sword: Dynamics of Public Confidence in
the Supreme Court.’’ American Political Science Review 80(December):1209–1226.
Caldeira, Gregory A. 1987. ‘‘Public Opinion and the U.S. Supreme Court: FDR’s Court-Packing
Plan.’’ American Political Science Review 81(December):1139–1153.
Caldeira, Gregory A.. 1991. ‘‘Courts and Public Opinion.’’ In The American Courts: A Critical
Perspective, ed. John B. Gates, and Charles A. Johnson. Washington, DC: CQ Press.
Caldeira, Gregory A., and James L. Gibson. 1992. ‘‘The Etiology of Public Support for the
Supreme Court.’’ American Journal of Political Science (August): 635–664.
Citrin, Jack. 1974. ‘‘Comment: The Political Relevance of Political Trust.’’ American Political
Science Review 68(September): 973–988.
Converse, Philip E. 1964. ‘‘The Nature of Belief Systems in Mass Publics.’’ In Ideology and
Discontent, ed. David E. Apter. New York: Free Press.
Craig, Stephen C. 1993. The Malevolent Leaders: Popular Discontent in America. Boulder, CO:
Westview Press.
Davis, James A., Smith W. Tom, and Marsden V. Peter. 2003. General Social Surveys,
1972–2003 [CUMULATIVE FILE] [Computer file]. 2nd ICPSR version. Chicago, IL:
National Opinion Research Center [producer]. 2003. Storrs, CT: Roper Center for Public
Opinion Research, University of Connecticut/Ann Arbor, MI: Inter-university Consortium for
Political and Social Research [distributors].
Delli, Carpini, Michael X., and Keeter Scott. 1996. What Americans Know About Politics and
Why It Matters. New Haven: Yale University Press.
Durr, Robert H., Andrew D. Martin, and Christina Wolbrecht. 2000. ‘‘Ideological Divergence
and Public Support for the Supreme Court.’’ American Journal of Political Science
44:768–776.
Easton, David. 1965a. A Framework for Political Analysis. Englewood Cliffs, NJ: Prentice-Hall.
Easton, David. 1965b. A Systems Analysis of Political Life. New York: Wiley.
Franklin, Charles H., and Liane C. Kosaki. 1995. ‘‘Media, Knowledge, and Public Evaluations of
the Supreme Court.’’ In Contemplating Courts, ed. Lee Epstein. Washington, D.C.: CQ Press.
Freeman v. Pitts. 1992. 503 U.S. 467.
Gamson, William A. 1968. Power and Discontent. Homewood, IL: Dorsey.
Gibson, James L., and Greg Caldeira. 1992. ‘‘Blacks and the United States Supreme Court:
Models of Diffuses Support.’’ Journal of Politics(November): 1120–1143.
Gibson, James L., Gregory Caldeira, and Lester Kenyatta Spence. 2003a. ‘‘Measuring Attitudes
toward the United States Supreme Court.’’ American Journal of Political Science 47(April):
354–367.
Gibson, James L., Gregory Caldeira, and Lester Kenyatta Spence. 2003b. ‘‘The Supreme Court
and the U.S. Presidential Election of 2000: Wounds, Self-Inflicted or Otherwise?’’ British
Journal of Political Science 33:535–556.
Evaluations of the U.S. Supreme Court
65
Graber, Doris A. 1997. Mass Media and American Politics, 5th ed. Washington, DC: CQ Press.
Grosskopf, Anke, and Jeffery J. Mondak. 1997. ‘‘Do Attitudes Toward Specific Supreme Court
Decisions Matter? The Impact of Webster and Texas v. Johnson on Public Confidence in the
Supreme Court.’’ Political Research Quarterly 51:633–654.
Hetherington, Marc J. 1998. ‘‘The Political Relevance of Political Trust.’’ American Political
Science Review 92(December): 791–808.
Hibbing, John R., and Elizabeth Theiss-Morse. 1995. Congress as Public Enemy: Public
Attitudes Toward American Political Institutions. New York: Cambridge University Press.
Hibbing, John R., and Elizabeth Theiss-Morse. 1998. ‘‘The Media’s Role in Public Negativity
Toward Congress: Distinguishing Emotional Reactions and Cognitive Evaluations.’’ American
Journal of Political Science 42(April): 475–498.
Hoekstra, Valerie J. 2000. ‘‘The Supreme Court and Local Public Opinion.’’ American Political
Science Review. 94(March): 89–100.
Hoekstra, Valerie J., and Jeffrey A. Segal. 1996. ‘‘The Shepherding of Local Public Opinion:
The Supreme Court and Lamb’s Chapel.’’ Journal of Politics 58(November): 1079–1102.
Johnson, Timothy R., and Andrew D. Martin. 1998. ‘‘The Public’s Conditional Response to
Supreme Court Decisions.’’ American Political Science Review 92(June): 299–309.
Kinder, Donald R., and Lynn M. Sanders. 1996. Divided By Color: Racial Politics and
Democratic Ideals. Chicago: University of Chicago Press.
Kritzer, Herbert M. 2001. ‘‘The Impact of Bush v. Gore on Public Perceptions and Knowledge of
the Supreme Court.’’ Judicature 85(July–August): 32–38.
Kuklinski, James H., Paul J. Quirk, Jennifer Jerit, and Robert F. Rich. 2001. ‘‘The Political
Environment and Citizen Competence.’’ American Journal of Political Science 45:410–424.
Koon v. U.S. 1996. 518 U.S. 81.
Lawyer v. Department of Justice. (1997). 521 U.S. 567.
Luskin, Robert C. 1987. ‘‘Measuring Political Sophistication.’’ American Journal of Political
Science 31(November): 856–899.
Marshall, Thomas R. 1989. Public Opinion and the Supreme Court. Boston: Unwin Hyman.
McCloskey, Robert G., and Sanford Levinson. 2000. ‘‘The American Supreme Court. Chicago:
University of Chicago Press.
Miranda v. Arizona 1966 384 U. S. 436.
Mishler, William, and Reginald S. Sheehan. 1993. ‘‘The Supreme Court as a Countermajoritarian
Institution? The Impact of Public Opinion on Supreme Court Decisions.’’ American Political
Science Review 87(March): 87–101.
Missouri v. Jenkins. 1995. 515 U.S. 70.
Mondak, Jeffrey J., and Shannon Ishiyama Smithey. 1997. ‘‘Dynamics of Public Support for the
Supreme Court.’’ Journal of Politics 59(November): 1114–1142.
Murphy, Walter F., and Joseph Tanenhaus. 1968. ‘‘Public Opinion and the Supreme Court: The
Goldwater Campaign.’’ Public Opinion Quarterly 32(Spring): 31–50.
National Law Journal Poll on Public Perceptions of the Supreme Court. (1990). National Law
Journal. February 26, A1.
Nicholson, Stephen P., and Robert M. Howard. 2003. ‘‘Framing Support for the Supreme court in
the Aftermath of Bush v. Gore.’’ Journal of Politics. 65(August): 676–695.
Orfield, Gary, and John T. Yun. 1999. Resegregation in American Schools. Cambridge: The Civil
Rights Project, Harvard University.
Petty, Richard E., and John T Cacioppo. 1986. ‘‘The Elaboration Likelihood Model of
Persuasion.’’ In Advances in Experimental Social Psychology, Vol. 19, ed. L Berkowitz.
New York: Academic Press.
Planned Parenthood of Southeastern Pennsylvania v. Casey. (1992). 505 U.S. 833.
Rosenstone, Steven J., Virginia Sapiro, Warren E. Miller, Donald R. Kinder, and the National
Election Studies. 1998. American National Election Study: 1997 Pilot Study [Computer
file].University of Michigan, Center for Political Studies [producer], 1997. Ann Arbor, MI:
Inter-university Consortium for Political and Social Research [distributor].
Virginia, Sapiro, Steven J. Rosenstone, and the National Election Studies. American National
Election Studies Cumulative Data File, 1948–2000 [Computer file]. 11th ICPSR version. Ann
Arbor, MI: University of Michigan, Center for Political Studies [producer], 2002. Ann Arbor,
MI: Inter-university Consortium for Political and Social Research [distributor], 2002.
66
Hetherington and Smith
Segal, Jeffrey A., Lee Epstein, Charles M. Cameron, and Harold Spaeth. 1995. ‘‘Ideological
Values and the Votes of Justices Revisited.’’ Journal of Politics 57:812–823.
Shaw v. Hunt. 1996. 517 U. S. 899.
Slotnick, Elliot E., and Jennifer A. Segal. 1998. Television News and the Supreme Court: All the
News That’s Fit to Air? New York: Cambridge University Press
Tanenhaus, Joseph, and Walter F. Murphy. 1981. ‘‘Patterns of Public Support for the Supreme
Court: A Panel Study.’’ Journal of Politics 43(February): 24–39.
U.S. v. Armstrong. 1996. 517 U.S. 456.
U.S. v. Fordice. 1992. 505 U.S. 717.
Zaller, John R. 1992. The Nature and Origins of Mass Opinion. New York: Cambridge University
Press.
Appendix A
Question Wording: Specific Evaluations of the Supreme
Court
PRODUCTIVITY
In your opinion, does the phrase ‘‘Doesn’t get much accomplished’’ describe
the Supreme Court extremely well, quite well, not too well, or not well at all?
ATTENTION TO THE CONCERNS OF ORDINARY AMERICANS
Does the phrase ‘‘Doesn’t care about what ordinary Americans think’’
describe the Supreme Court extremely well, quite well, not too well, or
not well at all?
LEVEL OF CORRUPTION
Does the phrase ‘‘Corrupt’’ describe the Supreme Court extremely well,
quite well, not too well, or not well at all?
LEVEL OF PARTISANSHIP
Does the phrase ‘‘Too involved in partisan politics’’ describe the Supreme
Court extremely well, quite well, not too well, or not well at all?